Morton v. Wiley, 80-246

• Decision Date: 08 December 1980
• Docket Number: No. 80-246,80-246
• Citation: 271 Ark. 319,609 S.W.2d 322
• Parties: Charles MORTON and Ailene Morton, Appellants, v. Raymond WILEY d/b/a Wiley Grain and Chemical Company, Appellee.
• Court: Arkansas Supreme Court

Page 322

609 S.W.2d 322

271 Ark. 319

Charles MORTON and Ailene Morton, Appellants, v. Raymond WILEY d/b/a Wiley Grain and Chemical Company, Appellee.

No. 80-246.

Supreme Court of Arkansas.

Dec. 8, 1980.

Mobley & Smith by William F. Smith, Russellville, for appellants.

Laws & Swain, P. A. by William S. Swain, Russellville, for appellee.

FOGLEMAN, Chief Justice.

Appellants, Charles and Ailene Morton, operated a service station in Atkins, Arkansas. On May 8, 1975, Charles Bryant drove into the station in his truck, running on a rim. He had a new 7.50 X 16 tube type tire which he had just purchased from appellee, Raymond Wiley, doing business as Wiley Grain and Chemical Company, which he wanted mounted in place of the flat tire on his truck. Don Morton, one of the two sons of appellants, who assisted them in the operation of the station, put the tire on the truck, but called his father when he could not get it to take air. Morton, who is legally blind but can "read a ruler" and "count money," attached an expander to the tire and it began to take air. As he leaned over the gauge, checking the pressure, the tire exploded injuring him severely about the head and shoulders. Later, it was discovered that appellee had sold Bryant the wrong size tire for his tire rim. One of the issues was whether Bryant or appellee was responsible for this. The Mortons brought suit against appellee for damages sustained by Morton when the tire exploded. The jury denied the Mortons any recovery. On appeal the Mortons allege eight points of error. We find no reversible error and affirm.

I

Appellants initially argue that there was reversible error in the solicitation of inadmissible testimony by appellee's attorney in the cross-examination of appellee, who had been called by appellants in their case-in-chief. Appellee's attorney questioned him concerning a conversation he had had with one of appellants' attorneys, Mr. Mobley. The conversation had been mentioned on direct examination in response to a question posed by Mobley to appellee relative to the procedure in selling a customer a product the customer specifically requested. Appellee stated that he usually sold a customer making a specific request exactly what he asked for without going into details of how the product would be used and for what. To illustrate this response appellee recounted an incident where Mobley and his partner, Mr. Smith, came into appellee's store and asked to purchase 10-20-10 fertilizer. Appellee related that he did not ask Smith any particulars as to the size of the lawn or the nature of the use, he merely sold Smith what he had requested. In answering the question by appellants' attorney, Wiley had stated that this incident occurred a day or two after Mrs. Morton had come to Wiley's place of business and asked for the tire, which Wiley had retrieved from the Morton station within an hour after the explosion. Wiley said that he had refused to let Mrs. Morton take the tire, but had told her she could come and look at it at any time.

The objectionable question was:

What else did Mr. Mobley tell you when he came down to see you that day and asked for that tire?

Appellee was well into his response and had said that Mobley had said what he was going to do and that the tire companies had a lot of money, before appellants objected on the grounds that the question was meant to elicit self-serving testimony. At this point, the trial judge dismissed the jury and allowed appellee's attorney to make a proffer of the testimony he hoped to bring out through this line of questioning. The proffer revealed that appellee would testify that Mobley approached him and told him that he (Mobley) was just trying to help the Mortons out, that tire companies had a lot of money and that he was going to proceed to get them money to take care of their obligations. Appellee said that he asked Mobley why he did not forget the whole thing. The court held this testimony irrelevant and inadmissible. The trial resumed, after the jury was reseated, and Mobley called his next witness. At no time did appellants move for a mistrial or request that the court give an admonishing instruction. The trial judge sustained appellant's objection, but was not asked to do more. We do not feel that the drastic remedy of declaring a mistrial would have been warranted, even if appellants had moved for that relief. We cannot agree with appellants that the question and answer had obviously been rehearsed. In light of the trial judge's favorable ruling on the objection, it is likely that he would have given an admonition to the jury if one had been requested.

Appellants also contend that appellee's attorney committed reversible error by attempting to mislead the court and jury by arguing that the testimony was admissible on the ground that appellants' attorney had asked Wiley about statements made or a conversation had in the presence of appellants' attorney, citing Ark.Stat.Ann. § 28- 1001, Rule 103(2)(c), relating to the conduct of proceedings so as to prevent inadmissible evidence from being suggested to the jury. No objection, request for admonition or motion for mistrial was made on this ground. We will not consider it because it is an issue first raised on appeal.

Appellants rely on International Harvester Inc. v. Hardin, 264 Ark. 717, 574 S.W.2d 260. In that case Rule 615 of the Uniform Rules of Evidence (Ark.Stat.Ann. § 28-1001, (Repl.1979)) was expressly violated, on a continuing basis, throughout the trial, by the court's improperly excluding a witness from the courtroom, over appellants' objection. We held that the error could not be considered harmless, so we found it necessary to reverse. The evidence to which appellants objected here was held inadmissible. In the absence of a request by appellants for an admonishing instruction and in view of the trial court's ruling in their favor, any error committed in this respect could not be the basis for reversal.

II

Appellants next argue that the court abused its discretion in forbidding appellants' attorney, on redirect examination, from eliciting an explanation of an answer given by Mrs. Morton on cross-examination. Appellee's attorney had asked Mrs. Morton whether it was true that she had hired legal counsel within three weeks of the accident. She responded that she sought legal counsel when she saw how much her husband was suffering. Appellee's attorney interjected and asked the witness to respond to his question. Appellants' attorney interposed and insisted that she be allowed to answer the question. The trial judge ruled that the witness should answer the question, and, if the answer needed an explanation, she could explain after answering and directed appellee's attorney to repeat the question. The examination continued and Mrs. Morton said that she had "more or less" employed the attorneys representing appellants to assist in any claim they might have when she and the attorneys went to Wiley's place of business seeking to obtain the tire. Upon further inquiry she said that these attorneys had not told her to keep up with bills and drug bills or that they would be important later. ¹ Appellants' attorney then interrupted, telling the witness that she had previously started to make an explanation. Appellee's attorney objected and the trial judge told appellants' attorney that he would have an opportunity to examine her after cross-examination was concluded. On redirect examination, appellants' attorney asked Mrs. Morton what had occurred to cause her to contact legal counsel and, when an objection was made, the circuit judge questioned the relevancy of the inquiry and sustained the objection after appellants' attorney had said that he sought to show that the reason Mrs. Morton had employed counsel was that she had called Wiley to get the tire and he would not let her have it and would not sell it to her.

The trial judge has a great latitude of discretion in deciding questions of relevancy. We would have to say that his ruling affected a substantial right of appellants before we could say that there was error. Ark.Stat.Ann. § 28-1001, Rule 103(a) (Repl.1979). We cannot do this. Appellee's attorney was questioning appellants' failure to present medical bills. We agree with the trial judge that it made no difference why she employed counsel or when.

III

Appellants object to a statement made by appellee's attorney as he objected to a question posed by appellants' attorney to Charles Wilson, a tire merchant in the community. Wilson was asked if, in his opinion, a 17-year-old boy would notice the difference in trying to fit the wrong size tire on the wrong size rim. The statement was We will object to that question, Your Honor, because whether or not a seventeen year old boy if they had a seventeen year old boy operating this machine, that's just the risk they took.

When objection was made to this statement, the trial judge promptly ruled in appellants' favor and admonished the jury not to consider the statement, and appellee's attorney apologized. Appellants contend that this was insufficient to cure the error but they did not request more. As justification, they cite Missouri Pac. Ry. Co. v. Glidewell, 199 Ark. 1187, 137 S.W.2d 237. There the opposing attorney on voir dire had asked the veniremen if they would have any prejudice against his counterpart even though 'he was a republican.' The court admonished the jury not to consider the remark, but on appeal we felt that the question may have evoked prejudices and biases too great to be cured by an admonition. We reversed and remanded for a new trial. A mistrial is an extreme and drastic remedy that will be granted only if justice cannot be served by a continuation of the trial. Foots v. State, 258 Ark. 507, 528 S.W.2d 135; Back v. Duncan, 246 Ark. 494, 438 S.W.2d 690; Wicks v. State, 270 Ark. --- (20 Oct.1980), 606 S.W.2d 366. Any prejudice here was sufficiently cured by the...